Emery v. Tichout

The opinion of the court was delivered by Collamer, J. By the auditor’s report it appears that the plaintiff had a legal account due for ten or twelve dollars. Then an agreement was made that the plaintiff, for after professional services, (the plaintiff being a physician) was not to sue defendant, but to receive such pay as the defendant could make from time to time. The plaintiff continued to render-services and charged them in account. The defendant delivered plaintiff various articles which he received and credited in account. What should be done with these articles ? The plaintiff had a legal account of ten or twelve dollars due and collectable in money. Pie had also an equitable claim for services, which he was not to sue. When payments are made and not applied by the payor, at the time, nor by the payee afterwards, the court are to make the application. 2 Vt. R. 283. In performing this duty the courts have not always followed a uniform rule. Sometimes they have applied the payment to the demand for which there was the least security. At other times they have made such an application as would be most beneficial to the defendant. They have always declined to make the application to an illegal claim, or to one that was forbidden by law, such as usurious debts or for spirituous liquors sold by small measure above the sum allowed by law. <There is, however, one rule which is clear, that is, [18] whenever the intention of the parties, at the time, can be ascertained, that will govern, if it be not unlawful. Though an auditor’s report is in the nature of a special verdict, yet, the court may infer, from the facts found, whatever.is a fair and legitimate conclusion, without recommitting it for that to be done by the auditor. In this case, the defendant had agreed to make such payments for the plaintiff’s services as he was able and in such things as he could spare. He did, thereafter, and while the services were rendering,deliver the plaintiff, from time to time, small amounts in onions, carrots, poor corn, some pigs, poor boards, &c. Now from these facts we consider the clear conclusion is — 1st. That these' articles were delivered and received in payment and not sold and bought to create a debt, 2d. That, being such things as the defendant could spare and delivered while the plaintiff was attending him to receive such pay, they were delivered on that contract. Such must have been then the intention of the parties and that should govern the application. Applying these articles in this manner, it would leave the plaintiff to recover for the ten dollars previously due him, (I say ten dollars, as that is the least sum and most favorable to the defendant,) and also 17 cents for services for the defendant’s son, making $10,17. Judgment reversed and judgment for plaintiff.